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Tuesday, October 13, 2009

Medical MJ: Court Victory, But Raids Continue in LA, SD, Anaheim

From the October newsletter of Americans For Safe Access to medical marijuana:
  • Collective Cannabis Cultivation OK by California Supreme Court
  • ASA Argues Anaheim's Dispensary Ban Violates California Law
  • Los Angeles Committee Balks on Dispensary Regulations
  • San Diego DA Orchestrates Assault on Medical Cannabis
Collective Cannabis Cultivation OK by California Supreme Court

The right of California patients to collective cultivate medical marijuana, and then sue if that right is violated, has been affirmed by the California Supreme Court in another landmark legal victory for ASA.

The court last month refused to review an appellate court ruling that had found for the rights of a seven-patient collective in Paradise. "The California Supreme Court has just told local law enforcement that they must uphold the medical marijuana laws of the state and not hide behind competing federal laws," said ASA Chief Counsel Joe Elford, who litigated the case on behalf of the patients.

Butte County officials had challenged the lower court's ruling, arguing that all members of a patient collective must physically work the garden that produces the cannabis, and that state law only provides an affirmative defense to criminal charges. Butte County Superior Court Judge Barbara Roberts ruled otherwise in September 2007, finding that the contribution of collective members may be solely financial, and patients "should not be required to risk criminal penalties and the stress and expense of a criminal trial in order to assert their rights."

The 3rd District Appellate Court said further that patients enjoy "the same constitutional guarantee of due process available to all individuals," and "[t]he fact that this case involves medical marijuana and a qualified medical marijuana patient does not change these fundamental constitutional rights or an individual's right to assert them."

ASA filed suit in May 2006 on behalf of David Williams, 56, and six other collective members in response to a warrantless search of his home by Butte County Sheriffs in 2005. Under threat of arrest and prosecution, Williams had been forced by law enforcement to uproot 29 of the 42 plants the collective was cultivating.

ASA Argues Anaheim's Dispensary Ban Violates California Law

The case involves a small dispensing collective in Anaheim, Qualified Patients Association, that had been in operation for five months when the city council passed a ban in July 2007. After a superior court ruled against the patients, ASA took up the appeal, arguing that the state medical cannabis law supersedes local bans.

When California's legislature adopted the Medical Marijuana Program act of 2003, its stated intent was to ensure a uniform implementation of the state's medical cannabis initiative. The legislature also determined that patients can collectively cultivate their cannabis and be reimbursed for it. Yet while more than 40 local governments have adopted regulations for the operation of collectives that dispense cannabis to qualified patients, at least 120 have forbidden such dispensaries. The Fourth Appellate District Court, which is expected to issue a decision within 90 days, previously ruled in another ASA case, Garden Grove v. Superior Court, that the state's medical marijuana law was not preempted by federal law and that local officials must uphold state, not federal, law.

Committee Balks on Los Angeles Dispensary Regulations

Four years after the Los Angeles City Council began the process of establishing regulations for the hundreds of medical cannabis dispensaries there, a key committee has said none may be allowed. The three council members who sit on the LA Planning and Land Use Committee (PLUM) appeared to act out of frustration, after City Attorney Carmen Trutanich refused to provide them with an ordinance that would regulate when and where dispensaries can operate. Trutanich's position is that the law does not allow any type of sale of medicinal cannabis, including distributing through storefront patient collectives.

The position of the newly elected city attorney -- while contrary to the legal opinion of many experts, including the state Attorney General -- should not be a surprise. Trutanich has consistently opposed any regulations that create community oversight and facilitate access for patients.  In fact, both Trutanich and Los Angeles County District Attorney Steve Cooley are headlining an October 8 training by the California Narcotics Officers Association entitled "The Eradication of Medical Marijuana Dispensaries in the City of Los Angeles and Los Angeles County."

San Diego DA Orchestrates Assault on Medical Cannabis

The day after the San Diego City Council established a medical marijuana task force, District Attorney Bonnie Dumanis had 14 patient collectives raided and arrested 31 people. Two of those arrested have been charged under sealed federal indictments. The DA, a longstanding opponent of medical marijuana, said qualified patients are welcome to grow their own, but they may not purchase it. This opinion conflicts with both the California Attorney General's medical cannabis guidelines and state law which allow patients to provide reimbursement for the medicine they receive.

San Diego officials have long resisted the state's medical cannabis law. County officials sued in a futile attempt to avoid issuing state-mandated ID cards to patients. Local law enforcement has repeatedly called in federal agencies to conduct raids. In 2007 and 2008, continued federal and local raids forced the closure of more than 20 medical marijuana dispensing collectives then operating.  An estimated 60 medical cannabis dispensaries opened in San Diego since the state Attorney General issued guidelines in 2008 for their legal operation.

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